Kenneth Vercammen & Associates, P.C.
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Tuesday, July 24, 2012




DOCKET NO. A-5109-08T45109-08T4





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Argued November 12, 2009 - Decided

Before Judges Payne and Miniman.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No. 07-02-0163.

Kevin G. Roe argued the cause for appellant

(Law Offices of Kevin G. Roe, attorneys; Mr. Roe and Adamo Ferreira, on the brief).

Sara B. Liebman, Assistant Prosecutor,

argued the cause for respondent (Theodore

J. Romankow, Union County Prosecutor,

attorney; Ms. Liebman, of counsel and on

the brief).


On September 16, 2006, a bar fight took place between defendant, Scott Munroe, and Kareem Prunty at Nuno's Pavilion in Linden. During the course of that fight, Naji Hall was shot and killed and Roger Chapman, Bryan Wyatt, Scott Reddick, and defendant were each shot and wounded. A single gun was recovered, and it was established through ballistic testing that all ammunition found at the scene and recovered from the individuals who had been shot had come from that one gun. Ownership of the gun was not established.

Defendant was arrested for the crimes and was indicted in a nineteen-count indictment for the murder of Naji Hall, N.J.S.A. 2C:11-3 (count one); attempted murder of Brian Wyatt, Scott Reddick, and Roger Chapman by possession of a firearm, N.J.S.A. 2C:11-3 and 2C:5-1 (counts two, six and ten); aggravated assault (serious bodily injury) on the three survivors, N.J.S.A. 2C:12-1b(1) (counts three, seven and eleven); purposeful aggravated assault with a deadly weapon on the three survivors, N.J.S.A. 2C:12-1b(2) (counts four, eight and twelve); aggravated assault by pointing of a firearm at the three survivors, N.J.S.A. 2C:12-1b(4) (counts five, nine and thirteen); attempted murder of Kareem Prunty, N.J.S.A. 2C:11-3 and 2C:5-1 (count fourteen); aggravated assault (serious bodily injury) on Kareem Prunty, N.J.S.A. 2C:12-1b(1) (count fifteen); purposeful aggravated assault with a deadly weapon on Kareem Prunty, N.J.S.A. 2C:12-1b(2) (count sixteen); aggravated assault by pointing of a firearm at Kareem Prunty, N.J.S.A. 2C:12-1b(4) (count seventeen); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eighteen); and possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count nineteen). Additionally, in a separate indictment, defendant was charged with unlawful possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b(1).

Trial took place in December 2008, at which Chapman, Wyatt, Reddick, defendant, and the mother of defendant's daughter, Ebanee Moore, testified, as did several police officers, a ballistics expert and a medical examiner. Additionally, images retrieved from multiple video surveillance cameras placed around Nuno's were repeatedly shown to the jury. Kareem Prunty did not appear at trial, despite a grant of immunity and issuance of a subpoena for his presence.

Evidence established unquestionably that Hall, Chapman, Wyatt, Reddick and defendant had been shot. Who did the shooting — defendant or Prunty — was far less clear, since the gun was seldom evident on the videos, struggles for possession of the weapon occurred, and the versions of events portrayed by the parties varied.

At the conclusion of the trial, the jury was instructed on the elements of the charged crimes as well as the lesser-included offenses of aggravated assault (significant bodily injury), N.J.S.A. 2C:12-1b(7), reckless aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(3), negligent assault with a deadly weapon, N.J.S.A. 2C:12-1a(2), aggravated manslaughter as to Hall, N.J.S.A. 2C:11-4a(1), and reckless manslaughter as to Hall, N.J.S.A. 2C:11-4b. Following deliberations, the jury reached a verdict on a majority of the counts, voting for acquittal on all charges relating to Prunty, charges of murder and aggravated manslaughter of Hall; charges relating to the survivors of attempted murder, aggravated assault (serious bodily injury), aggravated assault (significant bodily injury), purposeful aggravated assault with a deadly weapon, reckless aggravated assault with a deadly weapon, and aggravated assault by pointing a deadly weapon; possession of a weapon for an unlawful purpose; and unlawful possession of a weapon. The jury deadlocked on the charge of reckless manslaughter of Hall and on the charge of negligent assault with a deadly weapon as to Wyatt, Chapman and Reddick. The second indictment for possession of a weapon by a convicted felon was not tried.

In a post-verdict motion, defendant sought dismissal of the remaining charges under both indictments on grounds of collateral estoppel and double jeopardy. His motion was denied. Our denial of leave to appeal was reversed by the Supreme Court, and the matter was remanded to us for consideration on the merits. State v. Munroe, 199 N.J. 536 (2009).

On appeal, defendant makes the following legal arguments:



Following our review of the record in this matter, together with the legal arguments of counsel, we reverse.

In Ashe v. Swenson, 397 U.S. 436, 99 S. Ct. 1189, 25 L. Ed.2d 469 (1970), the United States Supreme Court found that principles of collateral estoppel were embodied in the Fifth Amendment's guarantee against double jeopardy. 397 U.S. at 445, 99 S. Ct. at 1195, 25 L. Ed. 2d at 476. The Court observed:

"Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since the court's decision more than 50 years ago in United States v. Oppenheimer, 242 U.S. 85[, 37 S. Ct. 68, 61 [, 37 S. Ct. 68, 61 L. Ed. 161 (1916)]. As Mr. Justice Holmes put the matter in that case, "It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt." 242 U.S. at 87[, 37 S. Ct. at 69, 61 L. Ed. at 164]. As a rule of federal law, therefore, "it is much too late to suggest that this principle is not fully applicable to a former judgment in a criminal case, either because of lack of 'mutuality' or because the judgment may reflect only a belief that the Government had not met the higher burden of proof exacted in such cases for the Government's evidence as a whole although not necessarily as to every link in the chain." United States v. Kramer, 289 F.2d 909, 913 [(2d Cir. 1961)].

[Ashe, supra, 397 U.S. at 443, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475.]

The Court continued by noting that the "rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality." Id. at 444, 90 S. Ct. at 1194, 25 L. Ed. 2d at 445. What is required is an examination of the record as a whole to determine whether "a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." Ibid. (quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L. Rev. 1, 38-39 (1960)).

Ashe concerned the armed robbery of six poker players by either three or four masked men. In an initial trial in Missouri state court, defendant was tried for the armed robbery of one of the poker players, Knight. Following his acquittal, he was tried for the robbery of a second poker player and convicted. On appeal from the denial of his petition for habeas corpus based on double jeopardy, the Supreme Court reversed. In doing so, the Court found that the record of the first trial was devoid of any indication that the jury could have found that an armed robbery had not occurred or that Knight had not been one of the victims. "The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers." Ashe, supra, 397 U.S. at 445, 90 S. Ct. at 1195, 25 L. Ed. 2d at 476. Because the jury in the first trial found that he had not, the second prosecution for robbery of a different victim was "wholly impermissible." Ibid.

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

[Id. at 446, 90 S. Ct. at 1195, 25 L. Ed. 2d at 477.]

The Court held that he could not.

New Jersey has "consistently interpreted the state constitutional double jeopardy protection as co-extensive with the guarantee of the federal Constitution." State v. Cruz, 171 N.J. 419, 425 (2002); State v. DeLuca, 108 N.J. 98, 102 (1987).

In order for collateral estoppel to foreclose reprosecution, a defendant must show the following:

(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.

[State v. Brown, 394 N.J. Super. 492, 502 (App. Div. 2007) (quoting Hennessey v. Winslow Twp., 183 N.J. 593, 599 (2005)).]

Even before Ashe, the State's Supreme Court had held collateral estoppel barred a subsequent prosecution when "the only rational explanation" for the jury's acquittal was that it turned on a finding of fact essential to the subsequent prosecution. State v. Cormier, 46 N.J. 494, 508-09 (1966).

A recent United States Supreme Court case is particularly relevant to the issue before us. See Yeager v. United States, ___ U.S. ___, 129 S. Ct. 2360, 174 L. Ed.2d 78 (2009). In Yeager, defendant was charged with securities and wire fraud for allegedly misleading the public about the virtues of a fiber-optic telecommunications system offered by Enron Corp.; with insider trading for selling his Enron stock while possessing non-public information regarding the inadequacy of the system's performance, its lack of full development, and its consequently lessened value to Enron; and with money-laundering arising from his disposition of the proceeds of his stock sales. Following trial, the jury returned a verdict of acquittal on the fraud counts but failed to reach a verdict on the insider trading counts.

A superseding indictment was then obtained by the Government recharging defendant with some of the insider trading offenses upon which the jury had hung previously and refining the Government's case against him. Defendant then moved to dismiss the indictment, arguing that the jury's acquittals on the fraud counts could be construed only as manifesting their determination that he did not possess material, non-public information about the performance of the system at issue and its value to Enron. The District Court denied defendant's motion, finding that whether defendant possessed insider information was not necessarily resolved in the first trial. United States v. Yeager, 446 F. Supp.2d 719, 735 (S.D. Tex. 2006). The Court of Appeals affirmed on different grounds. United States v. Yeager, 521 F.3d 367 (5th Cir. 2008). After an independent review of the record, it concluded that the jury's acquittal must indicate the jury's conclusion that defendant did not have insider information that contradicted what was told to the public. Id. at 378. However, it continued, if a rational jury found that defendant lacked insider information, then it would have acquitted defendant on the insider trading counts. Because it did not do so, the Court of Appeals held that it was impossible "to decide with any certainty what the jury necessarily determined." Ibid.

The United States Supreme Court, relying on Ashe, reversed in a five to three decision authored by Justice Stevens, with a concurrence by Justice Kennedy and dissents by Justices Scalia and Alito, joined by Justice Thomas. In reaching its conclusion, the majority initially noted that the "'interest in giving the prosecution one complete opportunity to convict those who have violated its laws' justifies treating the jury's inability to reach a verdict as a nonevent that does not bar retrial." ___ U.S. at ___, 129 S. Ct. at 2366, 174 L. Ed. 2d at 87 (quoting Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 832, 54 L. Ed.2d 717, 730 (1978)). It then observed in language relevant to the issue presently before us:

Unlike Ashe, the case before us today entails a trial that included multiple counts rather than a trial for a single offense. And, while Ashe involved an acquittal for that single offense, this case involves an acquittal on some counts and a mistrial declared on others. The reasoning in Ashe is nevertheless controlling because, for double jeopardy purposes, the jury's inability to reach a verdict on the insider trading counts was a nonevent and the acquittals on the fraud counts are entitled to the same effect as Ashe's acquittal.

[___ U.S. at ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88.]

As a consequence, the Court held that the Fifth Circuit's issue preclusion analysis was in error, since "[a] hung count is not a 'relevant' part of the 'record of [the] prior proceeding.'" ___ U.S. at ___, 129 S. Ct. at 2367, 174 L. Ed. 2d at 89 (quoting Ashe, supra, 397 U.S. at 444, 90 S. Ct. at 1194, 25 L. Ed. 2d at 475 (internal quotation marks omitted)).

Because a jury speaks only through its verdict, its failure to reach a verdict cannot — by negative implication — yield a piece of information that helps put together the trial puzzle. A mistried count is therefore nothing like the other forms of record material that Ashe suggested should be part of the preclusion inquiry.


The Court then noted that a host of reasons could cause a jury to hang, and determining which was applicable would be mere guesswork. "Such conjecture about possible reasons for a jury's failure to reach a decision should play no part in assessing the legal consequences of a unanimous verdict that the jurors did return." ___ U.S. at ___, 129 S. Ct. at 2368, 174 L. Ed. 2d at 89.

To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide. A jury's verdict of acquittal represents the community's collective judgment regarding all the evidence and arguments presented to it. Even if the verdict is "based upon an egregiously erroneous foundation" its finality is unassailable.

[___ U.S. at ___, 129 S. Ct. at 2368, 174 L. Ed. 2d at 90.]

As a consequence, the Court found that if the possession of insider information was "a critical issue of ultimate fact in all of the charges" against defendant, then the jury's verdict in his favor protects him from prosecution for any charge for which that is an essential element. Ibid. In reaching that conclusion, the Court noted that, in United States v. Powell, 469 U.S. 57, 105 S. Ct. 471, 83 L. Ed.2d 461 (1984), the Court had refused to apply collateral estoppel to invalidate portions of an inconsistent jury verdict. Thus, the Yeager Court determined, the existence of a "potentially inconsistent hung count could not command a different result." ___ U.S. at ___, 129 S. Ct. at 2370, 174 L. Ed. 2d at 91.

As a final matter, the Yeager majority held that its grant of certiorari had been based on the assumption that the Fifth Circuit had correctly interpreted the record, and according to its interpretation, the jury must have concluded in acquitting Yeager of fraud that Yeager lacked insider information. Declining to engage in further fact-intensive analysis of the record, the Court reversed the ruling against Yeager, observing that the Court of Appeals could revisit its factual analysis in light of the Government's arguments before the Supreme Court. ___ U.S. at ___, 129 S. Ct. at 2370, 174 L. Ed. 2d at 91-92.

Application of Yeager's principles to the present matter satisfies us that the remaining charges against defendant arising out of the events of September 16, 2006 must be dismissed. As we have noted, in the factual circumstances presented, all of those charges require a jury finding that defendant possessed a gun that he utilized in committing the crimes at issue. However, in the first trial, the jury acquitted defendant of both possession of a weapon for an unlawful purpose and unlawful possession of a handgun. Because of that verdict's preclusive effect, retrial is barred. Otherwise, the finality of judgments — one of the two core values of the double jeopardy clause — will be violated. ___ U.S. at ___, 129 S. Ct. at 2365-66, 174 L. Ed. 2d at 87; see also Crist v. Bretz, 437 U.S. 28, 33, 98 S. Ct. 2156, 2159, 57 L. Ed.2d 24, 30 (1978).

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Reversed and remanded for entry of orders of dismissal.

The State proceeded on a theory of transferred intent, claiming that defendant intended to murder Prunty but killed Hall instead.

We were supplied with the transcripts of trial testimony in the matter, but not the opening and closing arguments of counsel, the judge's instructions to the jury, and the record of deliberations and the verdict.

Justice Kennedy would have required the Court of Appeals to revisit its factual analysis instead of giving it the option of doing so.





March 3, 2010

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